C-36/98

OPINION OF MR LÉGER — CASE C-36/98

O P I N I O N OF ADVOCATE GENERAL LÉGER delivered on 16 May 2000 1

1. In this case, brought under Article 173 3) which the Community legislature is of the EC Treaty (now, after amendment, required to have regard to in implementing Article 230 EC), the Kingdom of Spain this policy. 4 seeks the annulment of Council Decision 97/825/EC of 24 November 1997 2con- cerning the conclusion of the Convention on cooperation for the protection and sustainable use of the river Danube. 3The 3. According to Article 130r(1) of the Council is criticised for having adopted this Treaty, the objectives of this policy are as decision, which falls within the common follows: policy on the environment, on the basis of the wrong Treaty provision.

'— preserving, protecting and improving the quality of the environment;

I — Law

— protecting human health;

7. Article 228(2) and (3), first subpara- graph, of the Treaty, provides as follows: 5. It reads as follows:

'2. Subject to the powers vested in the Commission in this field, the agreements shall be concluded by the Council, acting 'Within their respective spheres of compe- by a qualified majority on a proposal from tence, the Community and the Member the Commission. The Council shall act States shall cooperate with third countries unanimously when the agreement covers a and with the competent international orga- field for which unanimity is required for nisations. The arrangements for Commu- the adoption of internal rules, and for the nity cooperation may be the subject of agreements referred to in Article 238. agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 228.' 3. The Council shall conclude agreements after consulting the European Parliament, except for the agreements referred to in Article 113(3), including cases where the agreement covers a field for which the procedure referred to in Article 189b or that referred to in Article 189c is required 6. Article 228 of the EC Treaty (now, after for the adoption of internal rules. The amendment, Article 300 EC), which is the European Parliament shall deliver its

5 — In particular those falling within the United Nations 6 — This article is not, however, relevant to agreements entered Organisation, the Council of Europe, or certain permanent into in the fields of monetary policy (see Article 109 of the commissions set up to manage specific ecological areas, such EC Treaty (now Article 111 EC)) and commercial policy as the International Commission for the Protection of the (see Article 113 of the EC Treaty (now, after amendment, Rhine against Pollution. Article 133 EC)).

7 — The Single European Act established a single procedure. Article 130s provided that: 'The Council, acting unani- The Council may, under the conditions laid mously on a proposal from the Commission and after consulting the European Parliament and the Economic and down in the preceding subparagraph, Social Committee, shall decide...'; on the entry into force of define those matters referred to in this the Treaty of Amsterdam Anicie 175(1) EC was amended and it now provides that the ordinary decision-making paragraph on which decisions are to be procedure for 'environmental' policy falls within Arti- cle 251 EC. taken by a qualified majority.'

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B — The contested decision C — The Convention

10. The contested decision was adopted on the basis of Article 130s(1) in conjunction 13. Article 2(1), (2) and (3) of the Conven- with Article 228(2), first sentence, and (3), tion defines the objectives of the Contract- first subparagraph, of the Treaty in accor- ing Parties. These are, in summary, to dance with the Commission's proposal for maintain water quality in the Danube for a Council decision on the conclusion, on the benefit of all countries through which it behalf of the Community, of the Conven- flows, and, as far as possible, the improve- tion on cooperation for the protection and ment and rational utilisation of this natural sustainable use of the Danube. 8 It is the act resource. by which the Council approved on behalf of the European Community the Conven- tion signed at Sofia, Bulgaria, on 29 June 1994. 9

14. Article 2(7) provides that the Contract- ing Parties have the right to adopt and implement safeguard measures which are more stringent than those resulting from 11. The Convention sets out 'to establish a the provisions of the Convention. framework for bilateral or multilateral cooperation to protect the marine environ- ment, to prevent and control pollution in the river Danube and to assure the sustain- able use of the water resources of countries through which the river Danube flows'. 10

2 1 . Article 18 sets up an international 18. Article 7 of the Convention defines the commission charged with drafting propo- objectives and quality criteria for the sals and recommendations to the Contract- reduction of discharges of hazardous sub- ing Parties with a view to implementing the stances, whether from point or non-point objectives and provisions of the Conven- sources, 13 applicable to the industrial and tion. agricultural sectors, and to particular industries. Article 7 also provides that municipal waste water shall be subject to specific treatment in order to limit the emission of hazardous substances.

I I— Procedure and forms of order sought

23. The Kingdom of Spain asks the Court by the Community, 16 and recognises that to annul Decision 97/825 and order the the contested decision falls within the scope Council to pay the costs. of Article 130r of the Treaty. 17 It chal- lenges, however, the procedure used to adopt Decision 97/825. It takes the view that it should have been adopted in accor- dance with the procedure laid down in 24. The Council asks that the action be Article 130s(2) in conjunction with Arti- dismissed and that the Kingdom of Spain be cle 228(2), second sentence, and (3), first ordered to pay the costs. Alternatively, if subparagraph, and not on the basis of the application is upheld, the Council asks Article 130s(1) in conjunction with Arti- that the effects of the contested decision be cle 228(2), first sentence, and (3), first maintained until such time as a new subparagraph. The sole plea in law which decision can be adopted. the Kingdom of Spain advances in support of its application therefore concerns the allegedly incorrect choice of procedure by the Council for the adoption of Decision 97/825. 25. The French Republic, the Commission, the Portuguese Republic and the Republic of Finland were granted leave to intervene in support of the Council's submissions. They ask that the application be dismissed, and that the Kingdom of Spain be ordered to pay the costs. 15 27. In support of this plea, the Kingdom of Spain develops in substance two argu- ments.

III— Pleas in law and arguments of the parties 28. first, it asserts that Article 130s(1) of the Treaty lays down the general procedure in the field of the policy defined by Article 130r of the Treaty, whilst Arti- cle 130s(2) lays down the special procedure A — The Kingdom of Spain which must be followed when the Com- munity decides to adopt measures affecting the specific matters set out in that provi- sion. 26. The Kingdom of Spain states that it is in favour of the approval of the Convention 16 — Indeed, the Council stated, without being contradicted on the point, that Decision 97/825 was adopted by the unanimous vote of its members. 7 1 — Counsel for the Spanish Government specifically con- 15 — With the exception of the Republic of Finland. firmed this during the oral hearing.

29. The Spanish Government points out from the general procedure laid down by that Article 130r(1) of the Treaty lists the Article 130s(1) of the Treaty. objectives of the Community policy in the field of the environment in general terms. The purpose of this policy is always — and by definition — to protect the envir- onment and to improve the quality of it. The stated objectives include 'the prudent 32. The Spanish Government submits that and rational utilisation of natural the framers of the Treaty so drafted Arti- resources'. The Spanish Government cle 130s(2) to emphasise that water, by its observes that the measures concerning the nature a natural resource absolutely essen- preservation and improvement of natural tial to human life, merits special attention. resources which fall within Article 130r(1) It considers that when action founded on of the Treaty are also set out in general Article 130r of the Treaty has a bearing on terms. the management of this natural resource, it must be adopted by means of the special procedure provided for therein. Commu- nity acts having a bearing on the manage- ment of this particular natural resource cannot therefore be adopted without the unanimous vote of the members of the Council. 30. It concludes that Article 130s(l) of the Treaty is the appropriate provision when the Community decides to adopt general measures in favour of the environment. When embarking on such general measures the Council follows the procedure laid 33. Since Article 130s(2) of the Treaty down in Article 189c of the EC Treaty cannot be interpreted as a derogating (now Article 252 EC). 18 scheme, the Spanish Government asserts, the legal principle that derogations to a general rule are to be interpreted and applied strictly has no bearing in the present case. On the contrary, since the provision lays down a special procedure, it must be the preferred one and is perfectly susceptible of a broad interpretation. 31. Article 130s(2), on the other hand, lays down the special procedure to be followed when the Community decides to adopt measures specifically envisaged by that provision. These include, without any qua- lification or exception, the 'management of water resources'. Article 130s(2) therefore 34. Secondly, the Kingdom of Spain provides for a specific procedure distinct accepts that the case-law of the Court concerning the determination of the appro- priate legal basis for a measure suggests 18 — Commonly known as the 'cooperation procedure'. that recourse should be had to a single legal

38. By contrast, measures intended solely to prevent water pollution and to ensure its quality fall exclusively within the scope of Article 130s(l) and are excluded from that of Article 130s(2). That applies to Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters 36. In the view of the Spanish Government against pollution caused by nitrates from it requires a wide interpretation. Manage- agricultural sources, 20 which does not ment of water resources encompasses concern the use of water by man, but is administrative measures and measures for aimed solely at the protection of water the rational utilisation of water by man, resources against the harmful effects for with the aim of satisfying the requirements such resources of certain substances applied for agricultural purposes.

19 — See, in particular, Case C-300/89 Commission v Council [1991] ECR I-2867 ('Titanium dioxide'), paragraph 22. 20 —OJ 1991 L 375, p. 1.

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39. The Spanish Government therefore should have been adopted under the pro- considers that 'management of water cedure contained in Article 130s(2) in con- resources' should not be interpreted as junction with Article 228(2), second sen- meaning that a distinction is to be drawn tence, and (3), first subparagraph, of the between measures solely or principally Treaty. intended to preserve water quality — and which must, accordingly, be adopted under the procedure in Article 130s(1) of the Treaty — and those which are designed to regulate the quantitative use of water — and which must accordingly be adopted under Article 130s(2) of the Treaty. It submits, in support of this argument, that B — The Council and the interveners the Treaty does not apply any such distinc- tion.

'by derogation from the decision-making 48. In the Council's view, it is to be procedure provided for in paragraph interpreted by analogy with the various l...'. 21 The Council emphasises that most terms contained in Article 130s(2), first language versions of the provision repro- subparagraph, second indent, namely duce this wording and that, according to 'town and country planning' and 'land the Court's case-law, 22 the interpretation use'. The common factor in these three derived from the majority of the language concepts lies in the notion of 'works' to versions is the one which prevails. improve the environment. The concept in issue must, therefore, be understood as requiring the Community to use the proce- dure laid down by Article 130s(2) of the Treaty only where the measure in question is exclusively, or principally, concerned with water control, that is, if its purpose is to regulate the quantitative use of water. By way of example, the Council cites the 46. The Council points out that, according measures providing for hydraulic engineer- to settled case-law, any derogation from or ing works to regulate watercourses, or to exception to a general rule must be inter- control water levels. preted strictly. 23 To accept the interpreta- tion put forward by the Spanish Govern- ment of the expression 'management of water resources' in Article 130s(2) of the Treaty would result in every Community measure concerning water being subject to the exceptional procedure set out in this provision, depriving the principle laid down in Article 130s(1) of all effectiveness.

51. Similarly, the Finnish Government sub- mits that it concerns the management of 53. In the final analysis, 'the Council and water use and cites measures regulating the the various interveners submit that the construction of hydraulic projects, the use choice of procedure for the adoption of a of hydraulic power, and water drainage for measure coming within the common policy irrigation. on the environment depends on the object and content of the measure concerned. Article 130s(1) is considered to be the only proper basis for a measure intended pri- marily to protect water quality even if the quantitative aspects of water management are also affected provided that these aspects 52. The Commission submits that in addi- are incidental to the primary objective of tion to the purely physical element con- the protection of water quality. By contrast, tained in the expression 'management of if the measure is principally intended to water resources', the concept in issue is govern the quantitative aspects of aquatic further concerned with measures taken in resources, it should be adopted on the basis areas traditionally falling within national of Article 130s(2). sovereignty, such as the rights of Member States recognised by Article 222 of the EC Treaty (now Article 295 EC). 2 4 In the Commission's view, Article 130s(2) of the Treaty is the correct legal base when the interests of environmental protection give rise to a conflict with the Member States' laws on property. The Commission 54. In their view, analysis of both the aim explains that if Community measures and the content of the Convention's provi- impinge on the right of Member States sions shows that the primary concern of the within their own territory to implement Contracting Parties is to introduce mea- infrastructure projects, the action envisaged sures and mechanisms to protect the quality by the Community can only be adopted on of the waters of the Danube. The measures the basis of Article 130s(2) of the Treaty. for the management of the water resources The choice of such a complex formulation set out in the Convention are considered to in place of that — more general — of the be purely secondary. In other words, the Convention is only incidentally concerned with the quantitative aspects of the Dan- 24 — Which provides that: 'This Treaty shall in no way prejudice ube's waters and its primary object is to the rules in Member States governing the system of property ownership.' combat pollution.

27 — See Case 45/86 Commission v Council [1987] ECR 1493, 25 — See point 9 of the Spanish Government's application. and Case C-62/88 Greece v Council [1990] ECR I-1527. 26 — See Case C-42/97 Parliament v Council [1999] ECR I-869. 28 — Ibidem, by analogy.

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Member States, 29 or when the Member 61. Furthermore, in order to determine States and the Community enjoy concur- whether the contested decision was rent jurisdiction within certain fields 30 and adopted on the basis of the appropriate the Member States wish to retain substan- text of the Treaty, it should first be tial control over Community action. An determined whether the measures in ques- error in the choice of the relevant decision- tion concern principally one field of action, making procedure within the framework of the effects on other fields being only actions coming within the same title of the incidental, or whether the two areas are Treaty, such as, in the present case, that of equally fundamental. 32 In the first case, the environment, would deprive States of recourse to a single legal basis will suf- the right accorded to them by the Treaty to fice. 33 In the second, it is not sufficient 34 exercise their right of veto. and the Community institution is required to adopt the measure on the basis of the two provisions on which its competence rests. 35 Such plurality is, however, exclu- ded when the procedures provided for by the legal bases are incompatible. 36 This is necessarily the case when the two legal 59. It follows that the dispute centres on bases set out decision-making procedures the determination of the relevant legal basis which do not accord the same prerogatives of the contested decision. to the institutions participating in the adoption of the measure.

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the Treaty. On the other hand, a measure of the Treaty in including 'management of based on Article 130s(2) of the Treaty must water resources' in the measures to be dealt be adopted by the Council on the basis of a with by the procedure under Arti- unanimous vote within the framework of a cle 130s(2) of the Treaty was to emphasise procedure of consultation of the European that water, by its nature a natural resource Parliament and of the Economic and Social absolutely essential to human life, merits Committee. special attention. It concludes that any measure concerning water, whether from a qualitative or a quantitative point of view, falls in principle within the special procedure requiring a unanimous vote of the Council. 63. Consequently, it is necessary to define the scope of Article 130s.

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activities in such a way as to cause or 70. That interpretation is borne out by the aggravate the pollution by nitrates of fresh actual wording of Article 130s(1) which, it and underground waters. Consequently, it will be recalled, states clearly that: requires Member States to adopt measures which have a direct or indirect bearing on the way in which their farmers use water. Article 5 of that directive thus lays down measures which prohibit farmers from discharging directly into rivers waste 'The Council, acting in accordance with the waters with high concentrations of nitrates procedure referred to in Article 189c and or nitrogen compounds and thus require after consulting the Economic and Social them to stockpile livestock manure. Con- Committee, shall decide what action is to trary to the assertions of the Kingdom of be taken by the Community in order to Spain, this directive, the sole purpose of achieve the objectives referred to in Arti- which is to prevent water pollution, never- cle 130r.' theless includes provisions which have a direct or indirect bearing on the use of water by man.

71. By using the present indicative 38 and by referring generally to all of the objec- tives stated in Article 130r of the Treaty without qualification, the framers of the Treaty indicate expressly that the provision lays down a mandatory rule of general application. 39 68. Consequently, the test proposed by the Kingdom of Spain to distinguish between measures falling within Article 130s(1) and those falling within Article 130s(2) of the Treaty is not the right one. 72. Article 130s(1) read together with Arti- cle 130r(1) confirms this interpretation.

74. As to 'natural resources', the tradi- tional distinction is between renewable natural resources (such as water, air, fauna and flora) and non-renewable natural 77. The phrase 'rational use' shows that the resources (such as certain raw materials, common environmental policy aims to certain minerals or metals like oil, natural avoid all waste, and to use only the gas, uranium, gold...). quantity of natural resources necessary to meet the present needs of man, in such a way that the needs of future generations are not compromised. The objective of 'sus- tainable development' 41 inherent in the common policy on the environment is understood in the light of the rule that natural resources must be used in a rational manner. The emphasis here is on the 75. The objective of the 'prudent and necessity of implementing measures to rational utilisation of natural resources' preserve the quantity of natural resources. conveys the idea that protective measures affecting individual elements of the environ- ment as constituted by the natural resources must be implemented in compli- ance with strict rules. 40

80. As for n o n - r e n e w a b l e natural resources, the measures imposed must pre- vent their rapid exhaustion. It may be a question, for example, of banning the exploitation, extraction or use of natural resources at risk of running out, or of D — 'Management of water resources' making the extraction or use of non-renew- able natural resources subject to operating licenses granted according to a strictly defined rate and intensity.

84. According to the Kingdom of Spain, the concept of 'management of water resources' merges into the more general concept of 'management' or 'use of the particular natural resource constituted by 8 1 . It therefore follows from Arti- water'. This definition results in all mea- cle 130r(1) in conjunction with Arti- sures which bear directly or indirectly, cle 130s(1) of the Treaty that any action principally or incidentally on the qualita- of the Community intended, qualitatively tive or quantitative aspects of water falling or quantitatively, to preserve natural in principle within Article 130s(2) of the resources, including water, comes in prin- Treaty. ciple under the procedure laid down by Article 189c of the Treaty.

85. That definition cannot be accepted since, in particular, it appears from Arti- 82. Consequently the particular natural cle 130s(1) in conjunction with Arti- resource which water represents is not, in cle 130r(1) of the Treaty that water as a principle, excluded from the scope of particular natural resource is not, in prin- Article 130s(1) of the Treaty. ciple, excluded from the scope of Arti-

90. This is why the framers of the Treaty decided that when the implementation of 87. In my judgment the provisions of measures adopted by the Community insti- Article 130s(2) can only be interpreted tutions requires intervention by the Com- together with Article 130r of the Treaty munity in these areas the unanimous vote which, as we know, provides that, in order of the members of the Council should be to ensure an effective protection of the the rule, so that each Member State may environment, the Community legislature exercise a right of veto. must adopt concrete measures based on the principles contained in paragraph 2, and respecting the criteria listed in para- graph 3. Furthermore, it seems to me that the reasoning which led the framers of the Treaty on European Union to establish the specific procedure laid down in Arti- 91. Article 130s(2), first subparagraph, cle 130s(2) of the Treaty can throw light first indent, of the Treaty states first that on the meaning of this concept. 'provisions primarily of a fiscal nature' must be adopted by the Council, acting unanimously on the Commission's propo- 42 — See, in particular, the various semantic analyses put sal, after consulting the Parliament and the forward by the applicant and the various Member States which have intervened in this case. Economic and Social Committee.

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92. Article 130s(2), first subparagraph, of a political choice on the part of the first indent, of the Treaty, read together framers of the Treaty. In the current state of with Article 130r of the Treaty, must be development of the Community integration interpreted as meaning that only measures process, the Member States wish to con- of a primarily fiscal nature which are serve a wide power where Community intended to protect the environment must measures concern measures of an essen- be adopted in accordance with the proce- tially fiscal nature for the protection of the dure established by Article 130s(2), first environment, owing to the consequences subparagraph. which such measures can have for their national economies. They have, therefore, associated the adoption of this type of measure with the unanimous agreement of the members of the Council.

95. The specific procedure laid down by Article 130s(2), first subparagraph, first indent, of the Treaty may be compared 97. Article 130s(2), first subparagraph, with that laid down by Article 99 of the third indent, of the Treaty, read together Treaty, which requires the Council to act with Article 130r of the Treaty, must be unanimously in the field of harmonisation interpreted as meaning that only measures of taxes on turnover, excise duties and to protect the environment which substan- other indirect taxes. This right of veto tially affect the choice made by a Member accorded to the Member States is the result State between different sources of energy and the general structure of energy supply must be adopted in accordance with the 43 — See, in particular, the proposal for a Council directive (92/ procedure established by Article 130s(2), C 196/01) establishing a tax on carbon dioxide emissions and on energy (OJ 1992 C 196, p. 1). first subparagraph.

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99. This declaration was not confirmed by the Treaty on European Union. On the contrary, the framers of the Treaty on European Union amended Article 130s 100. Amongst the measures 'substantially and supplemented the provision by insert- affecting the choice of a Member State ing paragraph 2, which expressly provides between different sources of energy and the general structure of its supply', one may cite the measures which oblige Member 44 — Energy produced from certain natural resources, such as States to construct hydroelectric dams to oil, natural gas, and uranium could have been the object of conserve non-renewable natural resources Community measures taken for the purpose of 'the prudent or rational use of these natural resources'; (see used to produce energy, such as oil, but paragraphs 75 to 80 of this Opinion). 45 — It follows from this declaration that metals, as natural resources capable of extraction from the ground, were not covered by the Community's environment policy. They 46 — Community Programme on policy and action for the only became so when it became necessary to prevent environment and the sustainable development and respect environmental risks caused by their extraction (see, in for the environment (OJ 1993 C 138, p. 5), otherwise particular, the various decisions of the Council concerning known as 'the Fifth Action Programme'. This programme the combat of pollution caused by the discharge or covers the period 1992-2000 and is entitled 'Towards hydrocarbons into the sea and, in particular, Council sustainable development'. It follows the Resolution of the Decision 81/971/EEC of 3 December 1981 establishing a Council and of the representatives of the governments of Community system of information for the control and the Member States meeting in Council of 1 February 1993 reduction of pollution caused by the discharge of hydro- (OJ 1993 C 138, p. 1). carbons into the sea (OJ 1981 L 355, p. 52), repealed and replaced by Council Decision 85/85/EEC of 6 March 1986 47 — Fifth Action Programme, p. 31. (OJ 1986 L 77, p. 33)). 48 —OJ 1996 C 224, p. 1.

103. It follows from Article 130r, read together with Article 130s(2), first subpar- agraph, second indent, that only measures which are intended to protect the environ- ment and which concern 'town and country planning, land use and the management of water resources' must be adopted in accor- 101. Recourse to the procedure laid down dance with the procedure established by by Article 130s(2) of the Treaty for the Article 130s(2), first subparagraph. adoption of these measures is also the result of a political choice. At the present stage of development of the Community's integra- tion process, the Member States wish to preserve wide powers in the field of energy policy because of the effects which such measures may have on their national economies. To the extent that the imple- mentation of such measures may affect 104. In order better to understand the sensitive areas of the Member States' scope of these provisions, it is necessary economies, may interfere in areas tradi- to start by defining 'environment'. Neither tionally reserved to the Member States and, 'environment' nor 'policy (or action) on the in particular as regards energy policy, may environment' has been defined by the have consequences in an area subject to the framers of the Single European Act in near-sovereign powers of the Member Articles 130r and 130s; neither the Treaty States, they have associated the adoption on European Union nor the Treaty of of this type of measure with the unanimous Amsterdam has addressed this omission. agreement of the members of the Council. The failure to define these concepts was, without doubt, intentional. Drawing up an exhaustive list of the content of these concepts risks restricting them, when, in fact, they evolve alongside developments in science and technology. In the Fifth Action Programme, the Member States are encour- aged to take account of developments in perfecting non-polluting techniques, parti- cularly in genetic engineering, and to 102. The third and final category of mea- explore emerging industries when they sure falling within Article 130s(2), first define environmental policy. At the same

107. Achieving this aim necessarily 105. However, the Commission has been requires, of course, major works, creating putting forward definitions since 1971. It infrastructures adapted to meet environ- took the view that the environment inclu- mental concerns. Projects which spring ded 'all those elements which form, in the readily to mind are the construction of complexity of their relations, the frame- motorways, railways, and hydraulic engi- works, the milieus and the conditions of life neering projects, both so as to ensure the of man and society'. 5 0The Commission supply of drinking water to regions which explained that environmental policy are persistently or temporarily deprived embraced three distinct areas: man's physi- thereof, 52and so as to enable the transport cal, social and cultural environment. Pur- of goods or people 53 without the harmful suing its analysis of these concepts, 5 1it effects of road transport caused to the emphasised that protection of the physical inhabitants, fauna and flora of the regions environment meant reducing pollution and affected by such measures. harmful effects, town and country plan- ning, establishing transport and communi- cation networks. The improvement of sys- tems of care, incomes, job security, working conditions, housing, and training served to preserve man's social environment. Finally, protection of the cultural environment was defined by action to preserve urban and 108. 'Management of water resources', rural sites and improve education and interpreted in the light of the two other information, cultural structures and leisure. concepts to which Article 130s(2), first

subparagraph, second indent, of the Treaty concerned, and which are motivated by the refers, thus evokes the idea of projects in need for Community-wide town and coun- the aquatic environment of the Member try planning to improve man's quality of States 5 4 motivated by the need for Com- life. This is the case for measures involving munity-wide town and country planning projects intended not only to supply drink- with a view to improving man's quality of ing water to a region in which there are life. 55 The effects of such measures on the permanent or temporary shortages, 56 or to rights accorded to the Member States by ration the amount of water used in a given Article 222 of the Treaty are clear, as are region in order to prevent the exhaustion of the economic implications which such this vital natural resource, but also to measures have for the Member States. To enable the transport of goods or persons the extent that the implementation of such without the harmful effects of road trans- measures often impinges upon the right of port caused to the inhabitants, fauna and property as it is recognised by the Member flora of the regions affected by such States, and on their near-sovereign powers measures. By contrast, measures which in the field of town and country planning, require or prohibit the construction of in the current state of development of the hydroelectric dams with the aim of preser- process of Community integration, the ving natural resources do not come within framers of the Treaty wished to associate this provision. 57 the adoption of such measures with the unanimous agreement of the members of the Council.

114. The provisions read as follows:

112. The purpose of the Convention as thus stated in the preamble does not enable us to determine whether its principal, sole or essential objective lies in protecting the quality of the waters of the Danube, or in the desire to influence the way in which the Contracting Parties may dispose of or use '1. The Contracting Parties shall strive at the waters of the Danube from the purely achieving the goals of a sustainable and physical point of view — in particular, equitable water management, including the whether these measures are intended to conservation, improvement and the restrict the way in which the Contracting rational use of surface waters and ground- Parties can manage the economic resources water in the catchment area 6 0 as far as constituted by the waters of the Danube. possible. Moreover the Contracting Parties shall make all efforts to control the hazards originating from accidents involving sub- stances hazardous to water, 61 floods and ice-hazards of the Danube River. Moreover they shall endeavour to contribute to reducing the pollution loads of the Black 113. On the other hand, it appears from Sea from sources in the catchment area. the wording of Article 2(1) to (3), which define the objectives of the Contracting Parties, that the Convention is principally 59 — It is stated that the Contracting Parties must 'make all concerned to protect the water quality of efforts', 'take all appropriate legal [and] administrative... measures', and adopt '[urgent} water pollution abatement the Danube and only indirectly seeks 'as far measures'. as possible' the rational use of the surface 60 — By 'catchment area' of the Danube is meant 'the hydro- logical river basin as far as it is shared by the Contracting Parties' (Article 1(b) of the Convention). 61 — This expression denotes specifically 'substances the hazard 58 — Fourth paragraph in the preamble. See also the first, fifth p rotential of which to water resources is extraordinarily high so that their handling requires special preventive and and sixth paragraphs in the preamble. protective measures' (Article 1(e) of the Convention).

116. Thus, Article 3 of the Convention, which defines its scope, provides in general terms, in paragraph 2, that: 'Subject to this 3. To this end the Contracting Parties, Convention in particular shall be... planned taking into account the urgency of water activities and ongoing measures 63 as far as pollution abatement measures and of they cause or are likely to cause trans- rational, sustainable water use, shall set boundary impacts'. 64 priorities as appropriate and shall strengthen, harmonise and coordinate mea- sures taken and planned to be taken at the domestic and international level through- out the Danube basin aiming at sustainable development and environmental protection of the Danube River. This objective in particular is directed to ensure the sustain- able use of water resources for municipal, industrial and agricultural purposes as well 'Transboundary impact' means 'any signif- as the conservation and restoration of icant adverse effect on the riverine environ- ecosystems and to cover also other require- ment resulting from a change in the condi- ments occurring as to public health.' 62 tions of waters caused by human activity and stretching out beyond an area under the jurisdiction of a Contracting Party. Such changes may affect life and property, safety of facilities and the aquatic ecosys- tems concerned'. 65 115. The provisions of the Convention laying down the measures which the Con- 63 — Such as the discharge of waste waters, heat discharge, tracting Parties are required to take in planned activities and measures in the field of water order to achieve the objective of the construction works, the operation of existing hydrotech- nical constructions, in particular reservoirs and water Convention confirm this analysis. The power plants, planned activities and measures for the purposes of water use, such as water power utilisation, Convention does not impose concrete or water transfer and withdrawal, the handling of substances hazardous to water... (see Article 3(2)(a), (b), (c), (d) and (e)). 64 — Emphasis added. 62 — Emphasis added. 65 — Article 1(c) of the Convention.

118. The other provisions of the Conven- 121. By contrast, points (b), (c), (d) and (e) tion confirm this analysis. Article 4, con- state that the Contracting Parties must cerned with the forms of cooperation adopt appropriate measures with a view established by the Convention, is limited to preventing the pollution of the waters of to providing for the exchange of informa- the Danube, in particular measures to tion regarding water management. restrict the use of nitrates, plant protection agents, pesticides and other hazardous substances; 68 to minimise the risks of accidental pollution by preventive and control measures; to evaluate the impor- tance of different biotope elements for the riverine ecology, and propose measures for improving the aquatic and littoral ecologi- 119. Similarly, Article 6, which sets out cal conditions. specific measures for protecting water resources, provides that 'the Contracting 68 — Under Article 1(d) of the Convention, the expression 'hazardous substances' means 'substances which have 66 — Emphasis added. toxic, [carcinogenic], mutagenic, teratogenic or bioaccu- mulative effects, in particular those being persistent and 67 — In particular, expressions such as 'as far as...'. having significant adverse impact on living organisms'.

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122. Similarly, Part II of the Convention, ents or hazardous substances from concerning multilateral cooperation mea- non-point sources, especially for the sures which the Contracting Parties must application of nutrients as well as of adopt in order to comply with their obliga- plant protection agents and pesticides tions, lays down practical measures aimed in agriculture'; at preventing, controlling and reducing pollution of the waters of the river Danube.

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SPAIN V COUNCIL

sectors and industries as well as an addi- involve construction projects in the aquatic tional list of hazardous substances and environment of the Member States, such as groups of substances, the discharge of may change the quantity of water available, which from point and non-point sources or remaining available, for each of the shall be prevented or considerably reduced. Member States concerned, and motivated The updating of Annex II lies with the by the desire for Community-wide town International Commission.' and country planning with a view to improving man's quality of life. Conse- quently, the contested decision is subject not to the special procedure provided for by Article 130s(2), but to the general proce- 127. It follows from these considerations dure provided for by Article 130s(l) of the that both the purpose and the content of Treaty. The complaint put forward by the the Convention are concerned, essentially, Kingdom of Spain must therefore be dis- with protecting the water quality of the missed as unfounded. river Danube, and that its measures do not

Conclusion

128. For these reasons, I suggest that the Court:

— dismiss the application; and